(dissenting). Because there is nothing in the record to support the theory that monitoring began on or after June 3, *1892003, I would affirm the order of the Appellate Division (77 AD3d 103 [2010]) and answer the certified question in the affirmative, holding that monitoring began on May 19, 2003. For that reason, I respectfully dissent.
The stipulation of settlement provided, in paragraph 193, that it would “terminate at the end of five years after monitoring by the Compliance Monitors begins pursuant to [section] IV” We are called upon to determine, as a matter of law, when monitoring began. The majority opts for the settlement agreement’s implementation date — June 3, 2003. This would have been an easy date for the parties to choose to mark the beginning of the five years; after all, the implementation date is defined in the agreement. But the parties elected not to do so. In fact, the theory that monitoring began on or after the implementation date flies in the face of unambiguous language in section IV of the agreement, and the undisputed activities of the monitors themselves.
Plaintiffs have two principal arguments in opposition to defendants’ contention that the agreement had expired when they filed their motion — that monitoring logically could not begin before the implementation date, and that monitoring in fact did not begin before the implementation date. Both arguments are contrary to the record.
There is no doubt that the settlement agreement contemplated the possibility that the compliance monitors would begin monitoring before the implementation date; the stipulation made sure that the compliance monitors would be appointed in time “so that they can begin the performance of their duties pursuant to [the] Settlement Agreement no later than the Implementation Date” (¶ 113 [emphasis added]). The implementation date was simply a deadline. As the majority puts it, “if the City had begun discharge planning at some earlier point in time, the monitors could have started their compliance review on a date earlier than June 3, 2003” (majority op at 188 n 4).
Section IV paragraph 108 of the stipulation gave the compliance monitors a single task, “to monitor,” and specified two objects of that monitoring: “the provision of Discharge Planning in City Jails and Defendants’ compliance with the terms of [the Settlement].” Pursuant to the stipulation, both monitoring of discharge planning and monitoring of compliance could begin before the implementation date.
The majority attempts to defend the position that, under the stipulation, it was impossible for the compliance monitors to *190monitor discharge planning until after the implementation date. They cite paragraph 1 (bh) of the stipulation, which defines a “Discharge Plan” as a “plan describing the manner in which an individual” will receive mental health treatment and other assistance immediately upon release or transfer from a City jail. According to the majority, the term “Discharge Planning” in paragraph 108 refers to such discharge plans, which were not available for monitoring until after the implementation date. However, that argument ignores paragraph 1 (cc) of the stipulation, which defines “Discharge Planning” as “the process of formulating and implementing the Discharge Plan” (emphasis added). Because the settlement agreement expressly contemplated monitoring of the creation of discharge plans, there is no basis for the assertion that monitoring did not embrace the initial development of discharge planning guidelines before the actual implementation. Indeed, under paragraph 127 of the settlement agreement, defendants had to provide the compliance monitors with materials related to “the provision of Discharge Planning” that were “in existence on the date on which the Compliance Monitors are appointed” — i.e. discharge planning materials that existed before the implementation date.
It is also clear that monitoring did as a matter of fact begin before the implementation date. According to the compliance monitors’ First Report, they began on May 19, 2003 to engage in reviews of defendants’ draft policies and procedures, and to participate in meetings. One monitor observed a training session of persons who would conduct discharge planning — a task that the stipulation expressly listed as a “principal means of monitoring” (¶ 118).
In the same Report, the monitors provided a table outlining “the major monitoring activities” (emphasis added) they had engaged in. The table begins with the training observation, which occurred on May 28, 2003. Moreover, an invoice, dated November 3, 2003, charges for the monitors’ services at an hourly rate, with the first charge incurred on May 19, 2003, the same date that the monitors said they began work. Clearly, the monitors considered themselves to have begun monitoring before the June 3, 2003 implementation date. There is no reason for disregarding the monitors’ own assessments of when they commenced monitoring.
If plaintiffs had wished to ensure five years of monitoring after the implementation date, they could easily have done so. Instead they made the agreement terminate five years after *191monitoring began, presumably because at the time of the stipulation that date remained uncertain. It may be that they expected that there would be delays in the appointment of the compliance monitors. Perhaps plaintiffs wanted to guarantee five years of monitoring, even if the monitors started their duties some time after the implementation date. But when plaintiffs decided they would be filing an enforcement action, it was incumbent on them to bear in mind that the monitors had in fact started their monitoring duties before the implementation date.
Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Graffeo; Judge Pigott dissents and votes to affirm in a separate opinion in which Judges Read and Smith concur.
Order reversed, etc.